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Letters Patent Appeal No. 41 of 1961, decided on 28th April 1967.

S. 31(3)‑Order passed by subordinate Settlement Authority in exercise of delegated powers is subject to incidence of appeal and revisions.

S. 20(1)(2) [as amended]‑Revision Jurisdiction of Chief Settlement Commissioner is extended and not restricted by amendment removing provision as to time‑limit Legality of order in revision not affected by fact that it was passed at instance of person not a party to proceedings‑Exercise of revisional powers within sole discretion of authority concerned Failure to consider case of rival applicant for transfer of house "patent illgality",

A comparison of the language of subsection (1) of section 20 as it stood originally and of subsection (2) as amended would clearly indicate that the intention of the Legislature in enacting the subsequent amendment was to do away with the time limit fixed initially for filing of a revision petition by a party. The Legislature by removing the provision regarding the time limit was not restricting the jurisdiction of the Chief Settlement Commissioner, but was extending it beyond any limit of time, so as to make the supervisory powers of the Chief Settlement Commissioner more effective.

The legality of an order passed in revision is not affected on account of the fact, that it was at the instance of a person who was not an interested party.

The powers of revision are in the sole discretion of the authority concerned and cannot be jeopardised by the inaction of a party or any action on behalf of a stranger in that direction.

In the present case the source, through which the Chief Settlement Commissioner received information was immaterial.

The failure of the Deputy Settlement Commissioner to consider the case of a rival applicant for transfer of a house constituted a patent illegality, and the Chief Settlement Commissioner was justified in setting aside his order.

Mst. Amir Begum v. Umar Din and others P L D 1961 Lah. 360 and Abdul Majid Shaida v. Noor Jehan and another PLD 1967 SC 221 ref.

Muhammad Siddiq and others v. Chief Settlement and Rehabili tation Commissioner and others P L D 1965 S C 123 considered.

Sched. para. I read with Memo. No. 3223‑P.‑I.‑Reh.‑60, dated 7‑3‑1960‑Wife claiming to be in possession through her husband‑Mother of such wife can have benefit of possession of her daughter for purposes of transfer of house‑[Agha Shaukat Ali v. Settlement and Rehabili tation Commissioner Lahore and another P L D 1965 Lah. 445 ref.].

Sched. para. I‑Person in possession entitled only to one "house"‑Has no locus standi to assail transfer of another unit ("house") of a building to someone else.

Khalid Muhammad Ishaq for Appellant.

Sh. Abdul Haque for Respondents Nos. 1 and 2. Dr. Qutab‑ud‑Din and Q. M. Saleem for Respondent No. 1.

Fazle Mahmood for Respondent No. 2.

Major Ishaq Muhammad, S. C. (Legal) for Respondent No.3.

Dates of hearing : 24th and 28th April 1967.

This Letters Patent Appeal is directed against the order of a learned Single Judge of this Court passed in Writ Petition No. 5/R of 1961 on the 12th of January 1961.

2. The dispute in this case relates to a part of bungalow No. 8, Queens Road, Lahore, also numbered as S‑41‑R‑8. The facts, as they emerge out from the record of this case, are that this property, which covers an area of 14 kanals, is occupied by three families, one of whom is a local and resides in the annex. The families of Mr. W. Z. Ahmad, the appellant and Dr. A. A. Khan, respondent No. 1, reside in two different parts of the main bungalow. Mr. W. Z. Ahmad claims to be an allottee of the whole bungalow since the 27th of November 1948, although his CH form shows that he had lost his allotment order. The portion which is now in dispute, was occupied by Dr. A. A. Khan, respondent No. 1, in 1948 and allotment order was issued in his name by the Deputy Rehabilitation Commissioner, Civil Lines, Lahore, on the 9th of May 1955.

3. When the Settlement Operations started, Mr. W. Z. Ahmad filed a CH form for the transfer of the whole property. Mst. Hakim Saadat Begum, respondent No. 2, who is the mother‑in‑law of Dr. A. A. Khan, respondent No. 1 also filed a CH form for the transfer of the whole house. The entire property was transferred to Mr. W. Z. Ahmad, by order of Mr. Mauj Din Khan, Deputy Settlement Commissioner (Centre 1) Lahore, dated the 20th of November 1959 (Copy Annexure A'). The order is based on the report of Mr. G. R. Chaudhry, Assistant Settlement Commissioner, Centre 1, Lahore, of even date. In his report, Mr. G. R. Chaudhry did not mention the fact that Mst. Hakim Saadat Begum had also submitted a CH form. He only observed that Dr. A. A. Khan was occupying a portion of the bungalow and his wife had got an unverified claim of Rs. 7,000.00. According to this Officer, Mr. W. Z. Ahmad, occupied a major portion of the bungalow and the lawn. The following four points were catalogued in favour of Mr. W. Z. Ahmad:‑--

(i) He has got more verified claim ;

(ii) He is the senior allottee of the house ;

(iii) He occupies major portion of the bungalow ; and

(iv) The bungalow is not divisible into parts.

The Deputy Settlement Commissioner passed the following order :‑

"In the circumstances, the whole house is to go to Mr. W. Z. Ahmad even if the claim of any other occupant/applicant is verified hence after. Issue P. T. O., other forms are rejected."

4. Dr. A. A. Khan, respondent No. 1 moved a petition on the 16th of January 1960, before the Chief Settlement Commissioner (Copy Annexure F'). This petition, as sub para. 2 of its heading shows, was moved because there were rumours that the entire house was being earmarked to Mr. W. Z. Ahmad. In this petition, Dr. A. A. Khan, sub mitted that the portion in his occupation was an independent unit with separate lawn and entrance. It was also submitted that this portion was, prior to independence, occupied by the Northern Airways, and before that by a Foreign Doctor, who used to live there with his family. Dr. A. A. Khan in this petition claimed the whole bungalow and requested that the transfer of the house in favour of Mr. W. Z. Ahmad who according to the petition was a local and a non‑allottee should be deferred till the claim of his wife had been verified.

5. Syed Hasham Raza, Chief Settlement Commissioner called for the records and as his order would show took cognizance of the case under section 20(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He inspected the property and was struck by the lavish scale of construction raised by the evacuee owners M/s. Motisagar & Sons. According to the documentary evidence, placed before him, this bungalow was shared by M/s. Motisagar & Sons and Dr. A. Kalisch, a Foreign Doctor, who used to practise in Lahore. The premises used to have three electric meters before partition, one of which was in the name of the Garrison Engineer, M. E. S. R. F. A. Division Lahore, who used to reside in the portion, which is now occupied by Dr. A. A. Khan. After considering the whole matter, the learned Chief Settlement Commissioner passed an order on the 19th of May 1960 (Copy Annexure C'). He came to the conclusion that the two of the considerations, which prevailed with the lower Settlement Authorities, namely (1) Mr. W. Z. Ahmad had more verified claim and (2) that he occupied a major portion of the bungalow were not relevant for the transfer of the property. He held that the bungalow was divisible and the portion in possession of Dr. A. A. Khan was a separate house as defined in Displaced Persons (Com pensation and Rehabilitation) Act of 1958. He, therefore, directed that that portion be excluded from the P. T. O. of Mr. W. Z. Ahmad. The learned Chief Settlement Commissioner also found that the CH form of Mst. Hakim Saadat Begum had not been disposed of by the Deputy Settlement Commissioner according to law. He further found that Mst. Hakim Saadat Begum could avail of the possession of her daughter, who as a spouse of Dr. A. A. Khan will be deemed to be in possession of the property in dispute. He did not pass any order of transfer at that stage because Mst. Hakim Saadat Begum's claim had not yet been verified, but passed an order on the 30th of May 1960 (Copy Annexure D') transferring the portion in occupation of Dr. A. A. Khan to Mst. Hakim Saadat Begum.

6. Mr. W. Z. Ahmad moved a review petition against this order, which was decided by Pir Ahsan‑ud‑Din, Chief Settlement and Rehabilitation Commissioner, the successor of Mr. Hasham Raza. On the 5th of August 1960, he dismissed the review petition by holding that his predecessor was fully competent to pass the order, dated the 19th of May 1960, and that his finding with regard to the divisibility of the bungalow was quite clear. He, therefore, did not see any valid reason to review the order in question.

7. Mr. W. Z. Ahmad thereupon filed Writ Petition No. 5/R of 1961, which was dismissed in limine by Masud Ahmad, J. as he then was on the 12th of January 1961. The learned Single Judge held as follows :‑--

(i) That the Chief Settlement Commissioner had the power to determine, whether a building or premises consisted of one residential unit or more.

(ii) That the Chief Settlement Commissioner had the jurisdiction to revise the order of his subordinate in regard to the divisibility or otherwise of the bungalow in question.

(iii) That the Chief Settlement Commissioner having decided that the property consisted of two units and that one of the units having been transferred to Mr. W. Z. Ahmad, he had no locus standi to file the writ petition, because all that he could claim was only one house.

The question, whether the respondents were entitled to that portion of the house was, according to the learned Single Judge not relevant, so far as the petitioner‑appellant was concerned. The present Letters Patent Appeal was then filed.

8. It appears from the order, dated the 30th of March 1961, that the only point, which appealed to the admitting Bench was that the Deputy Settlement Commissioner, having held the house to be one unit in exercise of pokers of the Chief Settlement Commissioner delegated to him under sub section (2) of section 31 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, no revision petition could lie against such an order. This point now stands concluded by the provisions of the Displaced Persons Laws Amendment Ordinance No. XVIII of 1965, whereby it has A been declared that an order passed by a subordinate Settlement Authority, in exercise of delegated powers, will be subject to the incidence of appeal and revision.

9. Mr. Khalid Ishaq, learned counsel for the appellant, however, urged the following points :‑

(1) That Mst. Hakim Saadat Begum was not a party to the revisional proceedings and no order could have been passed in her favour in exercise of the jurisdiction under section 20(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

(2) That Dr. A. A. Khan being a stranger to the proceedings could not move the Chief Settlement Commissioner. The learned counsel in this behalf cited the case of Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner and others P L D 1965 S C 123.

(3) That the Chief Settlement Commissioner in exercise of his revisional jurisdiction could only examine the correctness, legality and propriety of the order of the subordinate Settlement Authorities. The contention of the learned counsel was that the order did not suffer from any of the infirmities which are intended to be cured by exercise of powers under subsection (2) of section 20 and the Chief Settlement Commissioner was, therefore, debarred from embarking upon its examination with a view to revise the same.

(4) That the order of Syed Hasham Raza suffered from an error, patent on the face of the record, because he exercised his power of revision in favour of Mst. Hakim Saadat Begum who had not filed any appeal against the rejection of her CH form.

(5) That Mst. Hakim Saadat Begum being neither an allottee, nor a person in possession, could not claim the transfer of the property in dispute.

(6) That the finding of the learned Settlement Commissioner that Mst. Hakim Saadat Begum could avail of the possession of her daughter for her benefit was not tenable because the fiction of law, by which a wife was deemed to be in possession along with her husband did not operate to the benefit of the parents of the wife.

10. We would like to dispose of together the first three contentions, which relates to the exercise of the powers of revision by the Chief Settlement Commissioner. Mr. Khalid Ishaq, in this connection, referred to section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it originally stood and then to subsection (2) of section 20, as amended by Ordinance I of 1959. Subsection (1) of section 20, as it stood originally reads as under:‑--

"(1) The Settlement Commissioner may, of his own motion at any time or on an application made in that behalf, within the prescribed time, call for the record of any case, or proceedings under this Act, in which an Additional Settlement Commissioner, a Deputy Settlement Commissioner, or an Assistant Settlement Commissioner has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of any such order, and may pass such order in relation thereto as he thinks fit."

Subsection (2) of section 20, as it emerged after the amend ment may also be quoted here:‑

"(2) The Chief Settlement Commissioner at any time may, and shall on being directed by the Central Government, call for the record of any case, or proceeding under this Act, in which a Settlement Commissioner, or an Additional Settlement Commissioner, or a Deputy Settlement Commis sioner, or an Assistant Settlement Commissioner, has passed an order for the purpose of satisfying himself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as he thinks fit."

Comparing the language of the two subsections, the learned counsel argued that the disappearance of the words " of his own motion" in the subsequent amendment indicated that it was only at the instance of an interested party that the Chief Settlement Commissioner could interfere in the orders of his subordinates in exercise of revisional jurisdiction. Since Hakim Saadat Begum had not moved the Chief Settlement Commissioner and Dr. A. A. Khan was a stranger to these proceedings, as he had not submitted any form for the transfer of the property in dispute, the learned counsel contended that the interference of the Chief Settlement Commissioner in the order of the Deputy Settlement Com missioner was without any legal warrant. We may say at the outset that we do not find any force in this argument. A comparison of the language of the two provisions of law, referred to above, would clearly indicate that the intention of the Legislature in enacting the subsequent amendment was to do away with the time limit fixed initially for filing of a revision petition by a party. The Legislature by removing the provision regarding the time limit was not restricting the jurisdiction of the Chief Settlement Commissioner, but was extending it beyond any limit of time, so as to make the supervisory powers of the Chief Settlement Commissioner more effective. The fact that Mst. Hakim Saadat Begum had not applied for the revision of the order of the Deputy Settlement Commissioner does not militate against the validity of the order of the Chief Settlement Commissioner, nor is its legality affected on account of the fact, that it was at the instance of Dr. A. A. Khan, who according to the learned counsel was not an interested party, that the learned Chief Settlement Commissioner took upon himself to re‑examine the whole matter. In Mst. Amir Begum v. Umar Din and others (P L D 1961 Lah. 360), the con tention with regard to the interpretation of subsection (2) of section 20 was just the opposite of what is now being convassed before us. It was urged in that case that the powers of revision could be exercised by the Chief Settlement Com missioner only suo moto, and not on the application of any party. The contention was repelled and it was observed :‑--

"It appears to me that the learned Judge in Chambers was right in saying that the Act did not confer on a party a right to lodge an application for revision, because it does not anywhere say in so many words, that an application for revision can be presented to the Chief Settlement Com missioner. As, however, it has not been said in the Act anywhere that no application for revision to the Chief Settlement Commissioner could be presented, the matter is not concluded on account of the right to present a petition for revision not being given specifically. Subsection (2) of section 20 of the Act is clear on the point that it is open to the Chief Settlement Commissioner to exercise powers of revision mentioned in that section, but nowhere does the Act say that that Officer can exercise the powers of revision vested in him only if no one has requested him to do so. I have no doubt in my mind that the Officer can exercise his powers of revision either of his own motion, or when he receives any information about an order, or an applica tion for revision is presented to him by any person, be the persons presenting the application a party to the proceedings in which the order, the revision of which is sought was passed or not."

We also find that the reference by the learned counsel to the case of Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (P L D 1965 S C 123) is inapt. In that case, the attack on the legality of an order passed in favour of an informer was grounded on the contention that the order of the Central Government, dated the 1st of September 1961, authorizing the Chief Settlement Commissioner to transfer property to an informer became ineffective on account of an amendment in section 10 of the Displaced Persons (Compensation and Rehabilitation) Act and the Chief Settlement Commissioner no longer possessed any power to pass the impugned order. The Attorney‑General in reply Invoked the provisions of section 20, which deals with general powers of revision. The argument did not find favour with their Lordships and was repelled with the following observation :‑--

"The difficulty in the way of acceptance of the learned Attorney‑General's argument is that proceedings under section 20 of the Act would be confined to persons, who were parties to the proceedings before the subordinate Settlement Authorities, and the informant would not figure anywhere in the picture."

It was further observed :‑

"An order passed under section 20 of the Act simpliciter could enure either for the benefit of one of the contesting parties excluding the informant, who would be a stranger to the proceedings, or could at best deprive those parties of any benefit of the evacuee property, if none of them was eligible for its transfer. In the latter event, conceivably, the property in question may be ordered to be sold by public auction. In no case, in proceedings purely under section 20 of the Act, a transfer to the alleged informant would be possible."

With the greatest respect, we venture to say that their Lordships did not lay it down that the exercise of the powers of revision by the Chief Settlement Commissioner depended on the contingency of an interested party moving him, or that he was disabled to exercise that power, if some person, who was not strictly a party to the lis had moved him in that behalf. The powers of revision are in the sole discretion of the authority concerned and cannot be jeopardised by the inaction of a party or any action on behalf of a stranger in that direction. It was held in Abdul Majid Shaida v. Noor Jehan and another (P L D 1967 S C 221) that :‑

"Section 20 of the Act gives a discretionary power of revision to a specially empowered Settlement Commissioner. There is no right given to any applicant to move a revision petition before the Settlement Commissioner. It is the latter's discretion to act under the powers, conferred on him by section 20, in a suitable case."

It may be pointed out that Dr. A. A. Khan had claimed the entire bungalow for himself and su far as Mst. Hakim Saadat Begum is concerned, the powers of revision were exercised in her favour suo moto. She had submitted a form and was an interested party. The source, through which the learned Chief Settlement Commissioner received information regarding this case, is immaterial. The failure of Mst. Hakim Saadat Begum to file an appeal is capable of explanation. Her case was not decided by the Deputy Settlement Commissioner and the ex parte order, which had been passed against her interest was never communicated to her. The circumstances of the case amply demanded the exercise of revisional jurisdiction.

11. Mr. Khalid Ishaq cited some authorities in order to elucidate his point with regard to the import of the words correctness, legality and propriety' used in subsection (2) of section 20 of the Act. There is no need to refer to those authori ties, because on the facts of this case, we find that the order of subordinate Settlement Authorities did suffer from illegality and impropriety. According to para. 8 of Scheme No. 1, the Deputy Settlement Commissioner has to make an enquiry for ascertain ment of the entitlement of an applicant, who claims a particular property. Where the entitlement is not clear, the applicant has to be issued a notice to appear before the Deputy Settlement Commissioner. If the applicant does not appear and an order is passed ex parte, it is incumbent upon the Deputy Settlement Commissioner under para. 11 of the Scheme to send a copy of his order to the applicant under registered cover. The above provisions of the Scheme were not complied with in regard to the CH form of Mst. Hakim Saadat Begum. On the other hand, it appears from the report of the Assistant Settlement Commis sioner, and the order of the Deputy Settlement Commissioner that they were not at all conscious of the existence of the CH form of Mst. Hakim Saadat Begum. The names of Mst. Arifa Khatoon and Dr. A. A. Khan were mentioned in the report and it so seems that the learned Deputy Settlement Commissioner without looking into the file himself had drawn an inference from the report that there remained more than one form after disposing of the form of Mr. W. Z. Ahmad. This was an entirely erroneous assumption of fact. The failure of the Deputy Settlement Commissioner to consider the case of Mst. Hakim Saadat Beg in F constituted a patent illegality, and the learned Chief Settlement Commissioner was justified in setting aside his order.

12. As regards the contention that Mst. Hakim Saadat Begum was not in possession of the property, we need only say that this is a question of fact and is concluded by the order of the learned Chief Settlement Commissioner, who passed the impugned order on the assumption that she was in possession of the property.

13. We also find that the contention of Mr. Khalid Ishaque to the effect that while Mst. Arifa Khatoon, wife of Dr. A. A. Khan could be deemed to be in possession in the eyes of law, as she was living with her husband, her possession could not operate to the benefit of her mother is also without force. The matter is concluded by the judgment of a Division Bunch of this Court in the case of Agha Shaukat Ali v. Settlement and Rehabilitation Commis sioner, Lahore and another (P L D 1965 Lah. 445). In that case, the father‑in‑law of the allottee was a claimant and a similar contention was raised before the Court. The Division Bench after referring to para. 1 of the Schedule to the Act, as well as to Memo. No. 3223‑P. I.‑Reh‑60, dated the 7th of March 1960, issued under second proviso to clause (c) of section 2 came to the following conclusion :‑

The result of this discussion is that not only the possession of the husband is to be deemed to be the possession of the wife in accordance with the second proviso to clause (c) of section 2 of the Act, her artificial possession is to be recognised for the purpose of the whole of the Act, and the only logical conclusion flowing from that state of affairs is that by reason of the applica tion of para. 1 of the Schedule, the concession shall stand extended to her father and her other relations mentioned therein. Consequently, Sh. Abdul Hayee can take full advantage of the fictional possession of her dauguter, Mrs. S. Z. Ahmad. It is to be noticed that she was put into possession of the property indirectly by this fiction of law under the Act.

We are in respectful argeement with the above observations and hold that the learned Chief Settlement Commissioner was tight in affording to Hakim Saadat Begum the benefit of the possession of her daughter for the purpose of transferring the property in dispute.

14. We also find that the findings of the learned Single Judge, with regard to the locus standi of the appellant, in unexceptionable. The Chief Settlement Commissioner had declar ed the portion in dispute as a residential unit quite separate from the one transferred to the appellant. Under the law, the appellant is entitled to the transfer of only one house. This having been done, he ceases to have any locus standi to assail the transfer in favour of Hakim Saadat Begum.

15. As a result of the above discussion, we find no force in this Letters Patent Appeal, which is dismissed, with costs.

A.H. Appeal dismissed.

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